More on counting laws and discrepancies in the Resume of Congressional Activity

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After my last post yesterday about Congress incorrectly counting the new laws in 2013, Daniel Schuman (of CREW) suggested that I look at previous installments of the Resume of Congressional Activity to see if there were other long-standing discrepancies in these historical counts of the number of laws passed by each Congress.

As I noted in that post, the Resume for the 113th Congress, 1st Session (2013) reported 65 new laws, whereas there were actually 72. The discrepancy is that while the bills were signed before the close of the session and well before the Resume was printed, the Office of the Federal Register (OFR) had not yet published the public law numbers for those last seven bills. Whoever made the Resume must have looked at OFR’s list and assumed that it was up to date, which it was not. UPDATE 2/10: And, actually, depending on how you count you might even reach 73. A Congressional staffer alerted me to S. 1614 (Pub. L. 113-74 (note: not 73)) which was passed by Congress (i.e. “enrolled”) in the first legislative year but not signed by the president until well into the second legislative year.

The Resumes for the 112th Congress (2011-2012)’s two sessions are way off too. It lists 239 laws in total. If you check it on Congress.gov or here on GovTrack you’ll get the correct answer of 284 — that’s 45 laws different! At OFR, which assigns public law numbers to bills, you’ll see the highest public law number is 283 — then add 1 for the private law that was enacted by this Congress and you get 284 again.

What happened here? The Resume was published in the Jan 3, 2013 edition of the Congressional Record, but 2 bills had been signed just the day before on Jan. 2 and 43 more were signed between Jan. 10 and Jan. 14, 2013. That’s after the 112th Congress had ended (on Jan 3, 2013), but within the 10 days (“Sundays excepted”) the President has to veto or sign a bill before it becomes law on its own. Note that those 45 bills missing from the 112th Congress Resume are not included in the 113th Congress Resume either, which as I noted yesterday and above is missing laws also, but for a different reason.

(OFR’s list of public law numbers only goes back online to the 103rd Congress, so from here on I primary compared the Resume to Congress.gov….)

The next discrepancy is in the 99th Congress (1985-1986). The Resume reports 688 laws (the total of public & private for the two sessions). On Congress.gov and GovTrack you’ll see 687 laws. Here again the resume is wrong, but this case is at least really interesting. H.J.Res. 738 was signed twice. It was signed first on Oct. 18, 1986 and became Public Law 99-500 (100 Stat. 1783; PDF). But it had a mistake — it was missing some paragraphs. Congress sent it over again, corrected, on Oct. 30. In signing it again, the president (President Ronald Reagan) included a note:

On October 17, 1986, I was presented by the Congress with an enrolled resolution designated H.J. Res. 738, a joint resolution making continuing appropriations for the fiscal year 1987, and for other purposes. I signed this measure into law on October 18, 1986. I have since learned that H.J. Res. 738 was not properly enrolled, in that a small number of paragraphs of text were omitted due to clerical error.

The provisions I signed into law on October 18 remain the law of the land. The Supreme Court has held that transmission errors of this sort do not in any way vitiate the legal effect of a President’s signature. Accordingly, that which was signed became law.

H.J. Res. 738 has since been properly enrolled and has been presented to me for signature. My signing of H.J. Res. 738 today will enable the provisions previously omitted to become law as well.

The corrected version was assigned a slip law number again: Public Law 99-591 (100 Stat. 3341; PDF). This all makes for a very unusual situation. I can understand one bill having two public law numbers and being present twice in the U.S. Statutes at Large as administrative outputs, but I can’t fathom how both can be claimed to be law. Anyway, putting that aside, was the Resume right after all for counting both instances of this law? No. Because if we take the Resume on its own terms, what it reports is actually, as it reads, “public bills enacted into law.” There was one bill in this story, H.J.Res. 738, not two. (See the footnotes at the bottom of the two Statutes at Large PDFs for the source of the presidential statement above.)

Moving on, the next discrepancy is in the 98th Congress (1983-1984). Here the Resume reports 675 laws whereas Congress.gov reports 677. The 98th Congress was a little contentious. There were 9 regular vetoes, two of which were overridden by Congress, as well as 14 pocket vetoes, and one case where the president attempted a pocket veto (by not signing it by the end of the 10-day period) but a court challenge left the bill neither vetoed nor enacted (a bill not signed after 10 days should become enacted on its own). That weird case is not one of the bills that Congress.gov counts as being enacted, so we can put that one aside thankfully. You’d think those two vetoes were the miscount, but that’s not it. The Resume counts 52 private laws in total for the Congress, but the Statutes at Large lists 54 private laws (volumes 97 and 98). It’s not clear which two might have been left out of the count. It’s certainly possible the Resume had a good reason for not counting two private laws, but, given what we’ve seen elsewhere, I think it’s a good bet that the Resume is wrong again.

In the 95th Congress (1977-1978), the Resume reports 804 laws while Congress.gov reports 803. The discrepancy is in the second legislative year, where the Resume counts 411 public laws and the Government Printing Office (GPO) shows just 410. GPO’s list also indicates the highest public law number is 633 whereas the Resume counts 634 public laws for the entire Congress. I don’t know what the Resume might have counted as the additional one or if it had any good reason, but only 803 statutes managed to get printed that year.

Congress.gov only goes back to the 93rd Congress, so from here through the 82nd Congress I compared the Resume’s public and private law counts to the highest public and private law number listed in the Statutes at Large at GPO, which isn’t as great a comparison in case of any numbering oddities (repeats or skipped numbers.

These were all of the discrepancies I found going back to the 82nd Congress, which is where GPO’s Statutes at Large start. So I didn’t check the 80th or 81st Congresses.

(“Private laws” is the designation for laws that affect small groups of individuals and usually are for the relief of particular citizens who have been injured by government actions. It’s just a designation. Those laws are publicly available the same as any other.)

“Law” is a term which does not have a universally accepted definition, but one definition is that law is a system of rules and guidelines which are enforced through social institutions to govern behaviour.

“Common law” and equity are legal systems where decisions by courts are explicitly acknowledged as legal sources.

“Civil and criminal procedure” concern the rules that courts must follow as a trial and appeals proceed. Both concern a citizen’s right to a fair trial or hearing.

“Constitutional and administrative law” govern the affairs of the state. Constitutional law concerns both the relationships between the executive, legislature and judiciary and the human rights or civil liberties of individuals against the state.

…so following your chain of analytics here is that only those ‘law’ that actually were passed through normal channels are accounted for. The last 3 presidencies including this present regime has effectively bypassed said channels to pass laws which are not unconstitutional but questionable at best. I mean finding fault in the general public at large when it was an administrative foul-up in 9/11. If even our administration divisions distrust one another how can we possibly put trust in any one of them to protect the public interests. $$$ is what sems to make such laws nowadays. I’m not a lawyer however I’d like to believe that our forefathers were ‘right’ to leave us to question our government. Josh, if were you I would do a recount, you’d see I’m correct e.g. ‘new laws’ don’t equal amendments to the prior rulings and laws. Nor are laws passed outside of recognized (Congress) channel which has been stipulated as a law. Just a thought 🙂